Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational opinions and depositions, the medical records and bills, and the testimony of the other witness, as well as my personal observations of Claimant and the other witness at hearing, I find:
1) Claimant is a 47 year old, currently unemployed individual, who last worked for Trans World Airlines, Inc. (Employer) as a ramp service agent in 2000. Claimant admitted that he remained technically employed by Employer until May 2, 2000. Claimant had worked for Employer for about six years. Some of his job duties included loading and unloading baggage, cargo and mail on airplanes. He has not worked anywhere else since he last worked for Employer.
2) Claimant testified he was a high school graduate and had some college (one year) studying computer science. After high school, he spent two years in the United States
Coast Guard on the Aids to Navigation Team, primarily changing lighthouses from generator power to solar power.
3) After leaving the Coast Guard, Claimant worked for the University of California at Irvine travel department as a temporary employee. He then worked at a building materials supply company and also selling insurance at an insurance company. Immediately prior to working for Employer, Claimant worked for Continental Airlines for approximately six to seven years. He worked as a ticket agent and gate agent, basically loading people onto airplanes for their flights.
4) Claimant denied having any low back problems or issues prior to his work for Employer. He never received any treatment for his low back and was never hospitalized for any low back complaints prior to his work for Employer.
5) When he began working for Employer, Claimant testified that his first job was as a ramp service agent. He basically was responsible for loading and unloading the baggage, cargo, freight and mail on airplanes as they entered and left the airport. Claimant explained that he generally worked on the inner gates, which were the long cross-country flights with lots of bags, freight and mail. Claimant testified that the vast majority of the time he was on his knees, bent over, in the belly of the airplane throwing bags to the door and then placing them on the cargo ramp. He said that he would not know if a bag weighed 15 pounds or 100 pounds until he lifted it to throw or move it. He estimated that there were approximately 100-200 bags he would have to load and unload per aircraft for each flight. Additionally, there was usually 2,50010,000 pounds of mail and similar amounts of freight. In addition, he was responsible for handling items like bags, wheelchairs, scooters, etc., that had to be checked at the gate. Generally, he was responsible for performing these activities on six to eight airplanes per day. Other than their scheduled breaks, Claimant testified that there really was no time to rest between flights. He noted that they also worked overtime all the time, especially if it rained and flights were delayed. He said that they were responsible for staying until the job was done, regardless of the time. He estimated that with overtime, he perhaps worked an additional one to two planes per day.
6) Claimant's low back problems started about seven to eight months into his job with Employer. He said that he was unloading aircraft brakes that weighed approximately 475 pounds each and he had difficulty sliding the wooden pallet with the brakes on it. Claimant said that he noticed immediate pain in the low back and he was unable to continue working. He said that he went to BarnesCare and he was diagnosed with a low back strain. They took X-rays of his back and then gave him pain medication and physical therapy. He said that he was off work for two weeks and then returned to light-duty work.
7) According to the medical treatment records from BarnesCare (Exhibit 4), Claimant was injured on November 19, 1995 when he was on his knees in the belly of a 727 airplane pushing a 425 pound piece of cargo, when he felt pain in the low back that went into the right groin. The report indicated that he had been handling baggage and lifting heavy boxes and cargo and he had had prior episodes of mild low back pain,
but nothing this severe. X-rays of the lumbar spine were "negative." He was given medications and physical therapy. While still treating for the November 1995 incident, the BarnesCare records document an additional re-injury of his low back on December 11, 1995, because he had been working on his hands and knees. He reported the same pain from the low back into the right groin. By January 4, 1996, Claimant apparently reported no further pain in his low back, so he was released back to full-duty work with the diagnosis of a resolved low back strain.
8) Claimant testified that the light-duty work he was given while treating for his low back, was on a cleaning crew. He said there was a lot of going up and down stairs and he only performed this work for a couple of weeks to a month. When he was released back to full-duty work, he went to the stores job. He said this job dealt with the airplane parts that were needed for repairs and catering for the airplanes, among other things. Overall, he said that it was a little bit of an easier job than the ramp service agent position, because there was no loading and unloading of bags and freight on a daily basis. However, he still had to lift and move heavy aircraft parts, some of which weighed 100 pounds or more. He said that he was lifting perhaps two to three heavy parts per hour. Claimant explained that the main difference between the lifting in the stores job and the lifting in the ramp job, was that he was able to lift while standing up in the stores job. He thought that he may have had one injury while at the stores job, but he was not sure. He admitted that he was receiving treatment for his back from Dr. Lucas while he was working in the stores job position.
9) Claimant testified that he returned to the ramp job because he got better days off and it was easier to get vacation. He said that he returned to the same tasks as described above. He was back on the job a couple of months when he starting having significant back symptoms again. He believed that he missed some days from work on account of his back, but he had no specific recollection. He testified that he started having the same symptoms he had before when he worked the ramp job. He said that he began receiving medical treatment for his low back again. He suffered another significant incident involving his low back, when he was carrying a scooter for a disabled person, which was checked at the gate, and he experienced extreme low back pain. He said that he could not straighten up. He reported it and went for medical treatment. He explained that he had already done six or seven planes that day, and, so, he was already in a bit of pain, even before the scooter incident occurred.
10) The medical treatment records from Dr. Leonard Lucas at Unity Health Medical Group (Exhibit A) document a visit on March 27, 2000, when Claimant complained of low back pain and indicated that he had a back injury. Although the handwritten notes from the doctor are admittedly difficult to completely decipher, I see that Dr. Lucas writes about back pain for five days, with no specific trauma and he seems to indicate "lifting at work." Claimant received medication and was taken off work. In a follow-up visit dated April 7, 2000, Dr. Lucas notes that Claimant's low back pain was slightly better, but he was still having tingling into both legs. Dr. Lucas recommended a lumbar MRI and a referral to an orthopedic doctor. He saw Claimant again on July 18, 2000 and noted that he has not worked since March 2000. He noted that Claimant had an epidural steroid injection that helped his complaints, but pain
management was apparently denied by his insurance, so he had not had any others. Dr. Lucas recommended a referral to an anesthesiologist for another injection.
11) Claimant began treating with Dr. Bakul Dave at Creve Coeur Pain Control (Exhibit C) on July 31, 2000. Dr. Dave's first report contained a consistent history of back pain radiating to the right gluteal area from a lifting incident in March 2000. The pain has been getting progressively worse and he notes that Claimant has not worked since March 2000. The report references an MRI of the low back that showed degenerative changes from L3 to L5, worse at L5-S1 with minimal flattening of the right thecal sac. Dr. Dave diagnosed right sciatica and right S1 radiculopathy. By August 16, 2000, Claimant returned complaining of left gluteal pain and left ankle numbness. Claimant eventually had epidural steroid injections from Dr. Dave, but by September 11, 2000, Claimant was reporting that the injections had not helped his complaints at all. Dr. Dave suggested consideration of a surgical opinion.
12) Claimant came under the care of Dr. Paul Sheehan (Exhibit D) on October 6, 2000 for his low back and left leg complaints. Dr. Sheehan's first note indicates that, "The onset was in March when he did some lifting at a friend's house." Dr. Sheehan ordered a myelogram and post-myelogram CT scan, which showed a small but broadbased ventral defect at L4-5 centrally and to the left of midline that flattens the ventral sac on the left. There were also small ventral extradural defects seen at L5-S1. After provocative discography on November 14, 2000 for abnormalities at the L4-5 and L5S1 levels, Dr. Sheehan recommended low back surgery.
13) Dr. Paul Sheehan (Exhibit D) took Claimant to surgery at Christian Hospital Northeast-Northwest (Exhibit D) on January 26, 2001. He performed an L4-5 anterior lumbar interbody fusion with radical discectomy and bone effusion, as well as an L5-S1 anterior lumbar interbody fusion with radical discectomy, placement of BAK cages and bony fusion (bone harvest from the left anterior superior iliac crest). He performed this surgery to treat Claimant's discogenic low back pain with lumbar spondylosis at L4-5 and L5-S1.
14) In follow-up visits with Dr. Sheehan (Exhibit D) after surgery, Claimant seemed to be improving with decreasing pain and improved function. In a report dated February 8, 2001, Dr. Sheehan suggested that Claimant pursue other employment opportunities on a long-term basis to try to get out of the heavy labor market. Claimant was doing reasonably well and the reports contain examples of Claimant performing activities around the house and walking up to 3 miles at a time. In his report dated July 20, 2001, Dr. Sheehan wrote that Claimant was not capable of returning to his prior occupation as a baggage handler. He suggests work hardening, but comments that "since this is not a job related injury it is not a covered benefit." Instead he suggests a functional capacity evaluation with physical therapy to determine any appropriate restrictions and Claimant's ability to return to work.
15) The medical treatment records from Dr. Leonard Lucas at Unity Health Medical Group (Exhibit A) document continued visits there from October 1, 2001 through November 20, 2001. The report from the October 1, 2001 visit indicates that
Claimant's work will not let him come back on light duty. It also indicates that Dr. Sheehan ordered a functional capacity evaluation that was not yet done.
16) Claimant testified that prior to seeking the additional treatment discussed below from Dr. Schoedinger, he was experiencing bone-on-bone grinding constantly in his back. He said that he could not sit, stand, walk or do anything else for a long time. He was only comfortable lying down. He never returned to full-duty work.
17) Claimant was examined by Dr. John Wagner at Orthopedic Associates, LLC (Exhibit 5) for an independent medical examination on September 8, 2003. Dr. Wagner's report contains a history of an injury at work for Employer in March 2000, but apparently a denial by Claimant of any prior injuries to his back. From his review of the X-rays, Dr. Wagner opined that there is a significant possibility of a pseudoarthrosis at L4-5 and possibly also at L5-S1. He recommended a CT scan to further evaluate those levels and also asked for the X-rays, MRI and myelogram from the time of the injury before he commented on causation. After reviewing those additional documents, Dr. Wagner issued a report dated October 31, 2003 in which he opined that Claimant did have a pseudoarthrosis of the lumbar fusion. He also believed that Claimant had pre-existing degenerative disc disease and that degenerative disease was the reason for the need for the fusion. He opined that any incidents at work, such as the one in March 2000, were only triggering events that made the degenerative disease symptomatic. He wrote, "I do not think there is anything at work that caused his degenerative disease, which is the cause of his complaints."
18) When Claimant continued to have low back problems, despite the first surgery by Dr. Sheehan, he eventually came under the care of Dr. George Schoedinger. The records of Premier Care Orthopedics (Exhibit E) show that Claimant first saw Dr. Schoedinger on December 4, 2003 with a complaint of low back and lower limb pain. The report contains a history of an original injury to his low back at work for Employer in 1996, when he was pushing a pallet of 450 -pound aircraft brakes that did not move easily on the sheet metal decking. He noted a number of exacerbations of his low back problems at work, culminating in March 2000, which led to his surgery with Dr. Sheehan in January 2001. Claimant reported that his symptoms have actually increased since the surgery and he saw Dr. Curylo, who suggested the possibility of an incomplete fusion. After some additional tests (MRI and CT scans of the low back), Dr. Schoedinger initially concluded that Claimant had stable fusions at L4-5 and L5-S1. However, he was concerned about the L3-4 level. Upon testing the L3-4 level, he became concerned again about the possibility of a pseudoarthrosis at L4-5 and suggested further surgery for that reason. He kept Claimant off work during this time.
19) Claimant was taken to surgery on February 16, 2004 at St. Anthony's Medical Center by Dr. Schoedinger and Dr. John Williams (Exhibit E) to address the pseudoarthrosis at L4-5 through an anterior spinal approach. However, when Dr. Williams opened up Claimant and attempted to approach the lumbar spine anteriorly, he found that Claimant's abdominal aorta was extremely densely scarred to the
anterior aspect of the L5 vertebral body, as a result of scarring from the prior spinal fusion surgery. Since they were unable to safely retract the aorta to perform the surgery, the surgery was aborted.
20) Claimant returned to Premier Care Orthopedics (Exhibit E) and saw Dr. Ravi Shitut on February 26, 2004. Dr. Shitut confirmed that the anterior approach surgery had to be aborted because of the significant postoperative scarring from the prior low back surgery. He also confirmed that Claimant had a solid fusion at L5-S1, but a nonunion at L4-5. He suggested further posterior spinal surgery to implant instrumentation at L4-5, to provide stability at that level without further violation of the spinal canal.
21) On April 6, 2004, Dr. Shitut (Exhibit E) took Claimant back to surgery at St. Anthony's Medical Center for his symptomatic nonunion at L4-5. Dr. Shitut performed a posterior spinal instrumentation by percutaneous route using Sexton instrumentation at L4-5. At a follow-up appointment with Dr. Shitut on April 15, 2004, Dr. Shitut noted that Claimant now had right L5 radiculopathy, which he did not have prior to the most recent surgery. He questioned whether there might be a problem with the positioning of the instrumentation, so he suggested a CT scan of the low back to check that. The CT scan taken that same date showed the right L5 transpedicular screw was slightly medial breaching the medial inferior cortex. Dr. Shitut determined that the screw would have to be repositioned to hopefully eliminate the right leg L5 radiculopathy.
22) Dr. Shitut took Claimant back to surgery at St. Anthony's Medical Center (Exhibit E) on April 27, 2004 to address the malposition of the right L5 pedicle screw. He performed a revision of the right instrumentation at L4-5 using the Sexton system. By May 7, 2004, the right leg radiculopathy was gone and Claimant was generally doing well, but he remained unable to work. Claimant seemed to be improving following the most recent surgeries. In the last report from Dr. Shitut dated November 1, 2004, he noted that the pain had improved but was not completely gone and Claimant was still taking Darvocet. X-rays showed that the interbody fusion at L4-5 still did not appear solidified. Dr. Shitut commented that Claimant's chances of returning to his pre-injury work "are very minimal." He encouraged Claimant to apply for other types of employment, including perhaps a gate agent, to see if he was able to return to that kind of a job. He recommended further follow up in three months with a CT scan to see if the fusion at L4-5 was healing.
23) A billing statement from Signature Health Services (Dr. George Schoedinger) (Exhibit M) shows that Claimant still owed $\ 4,568.84, apparently for the medical treatment he received from Dr. Schoedinger at Premier Care Orthopedics on account of his low back problems, as detailed above.
24) The medical treatment records and bills from Dr. Gregory Smith at Pain Management Services (Exhibit N) document the pain management services Claimant received for his low back pain from February 7, 2005 through December 19, 2007 at that facility. At the initial visit with Dr. Smith, Claimant reported a consistent history
of the onset of low back pain in 1995 with moving a pallet and lifting at work. Dr. Smith diagnosed post lumbar laminectomy syndrome with left S1 radiculitis. He prescribed Neurontin and recommended a trial of a spinal cord stimulator. The Stage I spinal cord stimulator trial was implanted on March 3, 2005. By March 7, 2005, Claimant reported a 50\% pain relief from the stimulator, so, therefore, Dr. Smith recommended further implantation of Stage II, based on this successful trial. Implantation of Stage II of the spinal cord stimulator and a pulse generator was conducted on March 10, 2005. In follow-up visits with Dr. Smith, Claimant reported good, but not complete, control of his left leg pain with the stimulator, but continued mid-lumbar pain, for which he was continuing to take pain medications. Dr. Smith diagnosed chronic intractable back pain related to post lumbar laminectomy syndrome with left S1 radiculitis. He tried to adjust the stimulator some to see if the back pain could be lessened without increasing the left leg pain.
25) Continued medical treatment records from Dr. Gregory Smith at Pain Management Services (Exhibits F and N) confirm that Claimant had a spinal cord stimulator implanted in March 2005 that was helping to control his left leg S1 radicular pain. By January 18, 2006, Claimant was still complaining of back pain that could not be better controlled by the stimulator. Dr. Smith diagnosed left S1 radiculitis and post lumbar laminectomy syndrome. He recommended right and left L5-S1 facet joint injections for the continued complaints. Those injections were carried out under fluoroscopy on January 19, 2006.
26) Claimant returned to Dr. Smith (Exhibit N) on July 19, 2007 with continued low back complaints, but also now some neck complaints. By August 16, 2007, Dr. Smith was recommending a revision of the spinal cord stimulator, which he eventually performed on September 19, 2007. As of December 19, 2007, Claimant was reporting no relief of his pain complaints from the recent revision. However, Dr. Smith questioned whether Claimant was even using the stimulator and why he was not attending the ordered physical therapy. Dr. Smith suggested that Claimant was noncompliant with the treatment Dr. Smith had provided and wrote that he was pessimistic that Claimant was ever going to find long-term improvement in his pain.
27) According to the medical bills attached to the records from Pain Management Services (Exhibit N), Dr. Smith charged a total of $\ 11,875.00 for his treatment of Claimant as detailed above. Claimant paid $\ 160.00 out of pocket for this treatment. Claimant's various personal health insurers apparently paid \$3,225.61. There were also adjustments listed on the billing statements that totaled \$8,489.39.
28) Medical treatment records from the Family Medical Group (Dr. Leonard Lucas), Claimant's family physician from 2001 through November 30, 2010 (Exhibit B), document the numerous visits Claimant had with Dr. Lucas during that time. Many of the visits were the result of ongoing back complaints. Claimant was getting checkups and medications refilled. There were some other conditions for which Claimant also sought treatment during that time, which did not appear to be directly related to the low back difficulties at issue in this case.
29) Attached to the medical treatment records from Dr. Leonard Lucas at the Family Medical Group (Exhibit B), I found copies of billing statements for Claimant's visits with Dr. Lucas from August 13, 2007 through November 30, 2010. For those visits where there was clearly a diagnosis regarding Claimant's low back condition, I found total charges billed of $\ 1,685.57. The statements reflected payments made by Claimant totaling $\ 475.18 and payments made by Claimant's personal health insurance of $\ 1,108.53, as well as $\ 58.29 for which there is no accounting. The very last statement from November 30, 2010 also reflected an amount yet unpaid of $\ 43.57.
30) Claimant also submitted into evidence copies of his prescription receipts (Exhibit G), his Medicare Explanation of Benefits forms (Exhibit H) and a summary of his prescription costs (Exhibit L). These records document the various prescriptions Claimant was given in connection with his low back complaints from January 4, 2006 through September 26, 2010. In comparing the prescription receipts and Explanation of Benefits forms to the summary in Exhibit L, I found that Exhibit L contained three duplicate entries and errantly excluded one payment confirmed in the Medicare papers. I also found some entries in Exhibit H for prescriptions for Claimant's low back condition that Medicare paid, but which were not otherwise included in Exhibits G and L. For dates of service of January 2, 2009, July 24, 2009, October 16, 2009 and February 3, 2010, I found an additional $\ 198.92 in prescription costs, of which Claimant paid $\ 116.62 and insurance paid $\ 82.30. Making all those appropriate adjustments to the totals contained in Exhibit L, I find that Claimant's total prescription costs for this time period was $\ 3,446.62. I find that he paid $\ 1,734.18 and his insurance paid $\ 1,708.39, with $\ 4.05 for which there is no accounting.
31) The deposition of Dr. Barry Feinberg (SIF Exhibit I) was taken on July 31, 2009 by Claimant to make his opinions in this case admissible at trial. Although Claimant took Dr. Feinberg's deposition, the deposition testimony was offered at trial by the Second Injury Fund. Dr. Feinberg is board certified in anesthesiology and pain management. He examined Claimant on two occasions, December 9, 2003 and May 3, 2005, for the purpose of an independent medical examination at the request of Claimant's attorney. He provided no medical treatment. He testified consistent with the opinions contained in his reports dated October 3, 2005. By way of history, Claimant apparently originally reported to Dr. Feinberg that his low back pain dated back to an incident unloading an aircraft in 1996. He further explained that the plane had come in with 200 bags that had to be unloaded. In Dr. Feinberg's second report, the history dated back to an unloading incident in 1995. Claimant described multiple reinjuries (without providing any specific details of the reinjuries) between that time and March 2000, when he was carrying a scooter up a jetway and was unable to keep working. Following the original examination on December 9, 2003, Dr. Feinberg concluded that Claimant had lumbar radiculopathy as a result of multiple injuries at work from 1996 to 2000, which necessitated treatment and surgery. He thought Claimant needed further evaluation and treatment to determine if a pseudoarthrosis existed and if more surgery was needed. He specifically opined that Claimant's work (bending, lifting from awkward positions and working in confined and unusual positioning in the belly of planes), and the cumulative series of back injuries he
suffered while working for Employer, was a substantial factor in causing Claimant's back pain and need for treatment and surgery. He did not believe Claimant was able to be gainfully employed at that time.
32) Dr. Feinberg testified that by the time of his second examination of Claimant on May 3, 2005, Claimant had had the additional treatment and surgery for the pseudoarthrosis and the implantation of the spinal cord stimulator. Claimant reported increased pain with activity, including sitting, standing, walking, bending, kneeling or stooping. He also had abdominal pain from the aborted anterior spinal fusion surgery. Dr. Feinberg noted that Claimant shifted positions constantly to try to alleviate his complaints. On physical examination, Dr. Feinberg found core muscle weakness, sensory loss in the L5 distribution on the left side and restricted range of motion in the lumbar spine. He diagnosed lumbar radiculopathy, post laminectomy syndrome of the lumbar spine, abdominal pain status post anterior approach to lumbar surgery, sacroiliitis and musculoskeletal pain syndrome of the lumbar spine. He opined that Claimant would require ongoing medical treatment for chronic pain management, including physical therapy, medication management and management of the spinal cord stimulator. His causation opinion, as stated above, remained unchanged. As a result of the cumulative trauma Claimant suffered while working for Employer, Dr. Feinberg opined that Claimant had permanent partial disabilities of 70 % of the body as a whole referable to the lumbar spine, 30 % of the body as a whole referable to the thoracic spine on account of the spinal cord stimulator, 25 % of the bilateral sacroiliac joints, and 20 % of the body as a whole referable to the abdomen. He opined that Claimant was permanently and totally disabled from employment due to the cumulative injuries and continued complaints of pain. When asked specifically about the 1995 event as opposed to the 1996 beginning of his problems, Dr. Feinberg testified that there were two possibilities: 1) It is actually just the same injury Claimant was describing and he was just off by a year; or 2) It was another minor strain that occurred in 1995. He testified that if it was the same injury, with the date just off by a year, then his ratings would not change, but if it was another prior minor strain, then perhaps 5 % would be related to that strain with the remaining 65 % of the lumbar spine related to the cumulative trauma at work. However, if there was a separate 5 %, he noted that there would be no combination between that alleged preexisting rating and the other ratings he issued in this case.
33) The deposition of Dr. David Raskas (Exhibit 1) was taken on August 18, 2009 by Employer to make his opinions in this case admissible at trial. Dr. Raskas is board certified in orthopedic surgery. He limits his practice to spine surgery. He examined Claimant on two occasions, February 6, 2006 and June 16, 2008, for the purpose of an independent medical examination at the request of Employer's attorney. He provided no medical treatment. Dr. Raskas recorded a history from Claimant of initial low back problems following an injury in 1995 while unloading brakes from a plane, with periodic flare-ups of low back problems between that time and 2000. In reviewing the medical treatment records, Dr. Raskas found, what he believed were inconsistencies, in Claimant's history of low back problems, including the date of onset. He discussed the note from Dr. Sheehan mentioning an onset of back problems from doing some lifting at a friend's house in March 2000, and jumped to the conclusion that Claimant
was inconsistent since he never mentioned an injury to his back "moving furniture in March of 2000." He recorded that Claimant was able to sit comfortably without shifting positions. After the first physical examination and review of the diagnostic studies, Dr. Raskas concluded that Claimant had chronic, longstanding degenerative disc problems in his low back at L4-5 and L5-S1. He believed that the degenerative non-work related process was what caused the need for the surgical treatment Claimant had received. He diagnosed failed back syndrome and suggested that Claimant could work in a sedentary capacity.
34) At the second physical examination on June 16, 2008, Dr. Raskas again wrote that Claimant sat comfortably in the room and was able to change positions without difficulty. He again diagnosed failed back syndrome, but now opined that Claimant was permanently and totally disabled. He did not believe the permanent total disability was related to the claimed work injuries. He opined that Claimant only sustained a lumbar strain referable to his work for Employer, for which he had 5\% permanent partial disability of the body as a whole referable to the lumbar spine. He believed that the rest of Claimant's disability related to pre-existing lumbar degenerative disc disease, and his poor surgical outcome from the surgery he needed on account of the degenerative disc condition. Dr. Raskas did not believe the degenerative disc disease was caused by Claimant's employment.
35) On cross-examination, Dr. Raskas was asked his understanding of the claimed mechanism of injury in this matter and he responded that it was based on injuries to Claimant's back in 1995 and 2000. When he was told the actual claimed mechanism of injury was repetitive trauma from work activities prior to 2000, not just two discrete accidents, Dr. Raskas responded that it still would not change his opinions in this matter. Despite admitting that he knew Claimant performed heavy, physical work as a ramp service agent, he testified that he believed Claimant's smoking was a stronger predictive factor for his developing degenerative disc disease than that heavy physical work.
36) The deposition of Dr. Jacques Van Ryn (Exhibit J) was taken on May 28, 2010 by Claimant to make his opinions in this case admissible at trial. Dr. Van Ryn is board certified in orthopedic surgery. He examined Claimant one time, January 29, 2010, for the purpose of an independent medical examination at the request of Claimant's attorney. He provided no medical treatment. He recorded a history from Claimant of first injuring his low back in 1995 or 1996 when he was moving airplane brakes in the belly of an airplane, and then continued low back pain and another exacerbation when carrying a motorized scooter up some stairs. Dr. Van Ryn recorded that Claimant shifted in his chair frequently during the examination. On physical examination, Dr. Van Ryn found limited range of motion in the lumbar spine, decreased sensation in the right leg in the L5 dermatome, but negative distraction testing. He explained that the physical examination showed very limited mobility of the low back, with pain in the back and right leg, but no markers of symptom magnification. He opined that Claimant had repetitive injuries to his low back, because the combination of his height and nature of his work imposed significant stresses that resulted in annular disruption and degenerative disc disease of L4-5 and L5-S1, necessitating a fusion.
Dr. Van Ryn explained in detail how Claimant's work for Employer on his knees, bent over, in the belly of an airplane, creates a tremendous mechanical disadvantage for the back, because of the awkward posture and repetitive movement of heavy weights. In other words, he opined that the work activities for Employer were a substantial factor in causing Claimant's low back injury. Dr. Van Ryn opined that all of the medical treatment Claimant had received was reasonable and necessary in light of this work injury. He believed Claimant would need future medical treatment, including pain medication and medical monitoring. He placed limitations on Claimant of no sitting, standing or walking for more than 30 minutes at a time, and no lifting, twisting, bending or climbing stairs. He opined that Claimant had a loss of use of 50 % of the body as a whole referable to the lumbar spine on account of his repetitive trauma at work for Employer, but he also agreed that Claimant was permanently and totally disabled and unable to work as a result of the repetitive, occupational injuries.
37) The deposition of Ms. Delores Gonzalez (Exhibit K) was taken on July 23, 2010 by Claimant to make her opinions in this case admissible at trial. Ms. Gonzalez is a certified vocational rehabilitation counselor. She interviewed Claimant on September 15, 2006 and conducted testing with him on October 31, 2006, at the request of Claimant's attorney. She prepared a report dated December 9, 2006 that contained her findings and conclusions in this matter. She also reviewed the medical treatment records and reports and noted that none of the doctors returned Claimant to work, with most of them indicating that he was unemployable. She did not believe Claimant was capable of performing his past work, and, further, did not believe he had any transferrable skills to other jobs in the open labor market because of his limitations and continued significant need for medications. She opined that his residual capacity is less than sedentary work. She opined that Claimant was incapable of engaging in any substantial gainful activity and could not be expected to perform in an ongoing working capacity. Ms. Gonzalez concluded that Claimant was not capable of competing in the open labor market due to the effects and limitations he has on account of the cumulative injuries at work for Employer.
38) The deposition of Ms. June Blaine (Exhibit 2) was taken on November 17, 2010 by Employer to make her opinions in this case admissible at trial. Ms. Blaine is also a certified vocational rehabilitation counselor. She interviewed Claimant and administered tests on October 16, 2007, at the request of Employer's attorney. She prepared an original report dated August 29, 2008 and then a supplemental report dated September 2, 2010 that contained her findings and conclusions in this matter. Although she originally concluded, based primarily on the first report of Dr. Raskas, that Claimant was employable in a sedentary position in the open labor market, she changed that opinion in her supplemental report, because Dr. Raskas was also then of the opinion that Claimant was not employable. Her ultimate conclusion in this matter was that Claimant was not employable in the open labor market due to the combination of the November 1995 and March 2000 injuries.
39) In connection with this alleged injury, Employer paid $\ 1,631.00 in medical benefits. Employer never paid Claimant any temporary total disability (TTD) benefits.
40) Regarding his continued low back complaints, Claimant testified that he has severe pain with rainy weather. He said just getting out of bed hurts on those days and his painkillers do not even seem to help. On good days, he is still in pain, but he is able to get up and move around some. He estimated that he has an average of three to four good days in a week, unless it is raining. He said that he is totally restricted by the doctors now, to 5 pounds of lifting and no repetitive bending or squatting. He described daily chores around the house that he is able to perform, including doing the dishes and cleaning the house some. He said that he can mow the grass, but he is in a lot of pain doing it. He admitted that he does some grocery shopping. He said that he tries to walk, stretch out and stay as active as he can. He described difficulty with walking and steps because his left foot drops and his toes drag, even worse when he is hurting more or on rainy days. He estimated that he falls approximately eight times a year because of the foot drop. He still uses pain medications, including morphine sulfate, and his dorsal stimulator. He testified that he still has bilateral leg and foot pain, worse on the left. Claimant described his sleep as "terrible," with sometimes being up for a couple days with pain until he collapses out of sheer exhaustion. He said that he was very athletic before the injury, including skiing, but he has not been able to do any of that since the injury. He said that he can drive, but not for too long. He has to get out at every rest stop for about 15 minutes. Claimant also noted that he has almost no sex life, since the back pain, and pills, have basically left him impotent.
41) Claimant testified that he has not applied for other work, because he does not believe he is capable of working since he cannot sit or stand for any period of time. He said that he is also on too many pain pills.
42) On cross-examination from Employer, Claimant explained that his low back was injured over a period of time at work, but there were some memorable specific events, such as the airline brakes, lifting the scooter or changing seat covers. Claimant admitted that he technically continued to be employed by Employer until May 2, 2000. He received long-term disability from Employer for two periods, but he could not recall the exact dates. Claimant testified that he asked Employer for medical treatment quite a few times before getting the original surgery from Dr. Sheehan. He did not remember any lifting of furniture or telling anyone at Dr. Sheehan's office about lifting at a friend's house. He admitted that he is still a smoker. He said that he has tried to quit, but then starts again.
43) On cross-examination from the Second Injury Fund, Claimant confirmed that he had no physical or medical problems that compromised his ability to work prior to going to work for Employer. He said that he had also already been working for several months for Employer with no pain prior to the brake injury. He confirmed that he had back pain from the time of the brake injury until the scooter injury, and then it went downhill after the scooter.
44) I observed Claimant shifting around in the witness chair during his testimony in an apparent attempt to get more comfortable and relieve some complaints. He finally had to stand up approximately 50 minutes into his testimony during the trial.
45) Claimant's wife of 13 years, Becky Groves, also testified on his behalf at the hearing. She confirmed that he had no back complaints or injuries before he began working for Employer. After he started working for Employer, she remembered that there were numerous times that she heard him complaining about back pain, which all started with the brake incident. She said that her husband was very active prior to the injury, but he has been unable to do any biking, camping or skiing since that time. He cannot do much lifting and even has problems bending to get things out of the cabinets at home. She estimated that there are six to seven days per month when he cannot even get out of bed. Those days are normally precipitated by weather, walking too much or too much activity. Ms. Groves testified that the medications her husband takes for the pain make him scatterbrained, short-tempered and easily frustrated. She agreed that he does some light housework. Overall, Ms. Groves noted that she has seen no real improvement in his condition and instead it just gets worse and worse year after year, with more frequent and intense pain.